What are my rights as an employee under TUPE?

EMPLOYEE TRANSFERS FROM
SENDER TO RECEIVER
ORGANISATIONS
April 1st 2013
Presented by
Kate Calder Interim Head of People Services
GMCSU Representative
Jan Hornby People Services Lead CSU
Mary Rudkin Transition HRBP
Parveen Anwar Transition HRBP
The Transfer of Undertakings (Protection of
Employment) Regulations 2006
TUPE
The transfer of a business is a complex matter and there are laws in place which are
designed to ensure that the process is undertaken fairly.
TUPE is a piece of employment legislation that protects employees’ employment
rights in the event that a business or part of a business in which they work is taken
over or transferred to another organisation – prohibits dismissals in connection with
a transfer. The application of TUPE is a matter of law and parties cannot agree not to
apply TUPE.
A transfer from one organisation to another organisation may not technically be a
TUPE transfer but the Cabinet Office Statement of Practice (COSOP) effectively
imposes TUPE in most NHS transfer situations.
What are my rights as an
employee under TUPE?
• To be informed and consulted on the transfer and any proposed
measures (changes to employment terms and conditions)
• Continuity of employment retained - an employee’s contract
(which is in place immediately prior to the transfer) will
automatically transfer to the new employer on the date of
transfer. This means that contracts will be treated as if it had
been originally made with the new organisation.
What are my rights as an
employee under TUPE?
• Protection of continuous service - this is important to protect statutory rights
such as a right to claim a redundancy payment and unfair dismissal.
• Preserved terms and conditions of employment after transfer - all contractual
terms and conditions are protected as at the date of the transfer, and will be
treated the same after the transfer, as before:
• All national terms under Agenda for Change such as maternity leave, sickness
scheme, annual leave.
• All local terms and conditions including special leave, redeployment etc.
Variation to Terms & Conditions
Variation to terms and conditions can only be done lawfully if the new
employer can show that it was for an economic, technical or organisational
reason unconnected with the transfer or due to a statutory change –these
changes are referred to as “measures”.
“Measures” (i.e. what an employer has to consult about) have been deemed
to mean any action, step or arrangement, for example, new systems of work,
new working hours or new working arrangements.
However, following the transfer on 01/04/13, if an employee voluntarily
changes their post, for example, by an increase or decrease of hours or they
take a promotion, this will probably lead to a change of contract. Receiver
organisations will need to identify a strategy for issuing new contracts in line
with the terms and conditions of the new organisation.
Variation to Terms & Conditions
Discretionary benefits are not protected by TUPE and
therefore may not continue post transfer, examples of
these may include:
Health Time and Flexi Time.
Pay dates may change depending on new employer
arrangements.
Do I have to transfer to the new employer?
No, employees have the right to object to being transferred and
cannot be transferred against their will.
However, employees need to be aware that if they decline the
transfer, this would not amount to a dismissal. The employee
would be treated as if they had effectively resigned from their
post and they would not be entitled to a redundancy payment.
Do I have to transfer to the new employer?
If an employee believes either of the following applies to their
situation then they should make this clear at the time of objection
and their case will be considered:
• That the transfer would amount to a substantial change in their employment
situation that causes a material detriment to their personal circumstances
• That their post has been incorrectly designated for transfer
If an employee does not state one of the above reasons then their
objection will be treated as notification that they do not wish to
transfer and their employment will cease on the date of transfer.
Process
The process of transferring employees to receiving organisations on
1st April 2013 has begun and is being carried out in partnership with
sender organisations, receiver organisations, Trade Unions and
employees.
Employee transfers will be effected in accordance with the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (TUPE) or
a Transfer Scheme/Order covered by the Cabinet Office Statement of
Practice, January 2000 (Revised November 2007) (COSOP).
COSOP ensures that employees will be treated no less favourably
than if TUPE applied in relation to protecting continuity of employment
and transferring on current terms and conditions.
Process
Both sender and receiver organisations have legal requirements to
fulfil in the transfer of employees to the new organisations on
1st April 2013.
The process that will be followed to ensure these are met is
summarised below:
• Sender organisations identify employees for transfer including employees
who have secured roles in receiver organisations via Lift & Shift, Lift & Flip
and hosted arrangements. Employees who have a transfer right but who
have not secured a role in a receiver organisation will be included
Process
• Staff transfer information is regularly being updated by the Central
Transition Team in order for the Department of Health to be able to
populate Staff Transfer Schemes.
• On 15/03/13 updated Staff Transfer Scheme staff lists will be sent to
sender organisation managers to check and confirm. These must be
returned to the HR Central Transition Team with any amendments
made by 18/03/13.
• The Staff Transfer Scheme staff list will then be confirmed by the GM
Executive Management Team, signed off by the GM Board by
27/03/13 and then sent to the receiver organisations.
Process
• The Department of Health will sign off the Staff Transfer Schemes on behalf of
the Secretary of State by 31/03/13.
• Sender organisations provide details to receiver organisations of their
contractual and non contractual terms and conditions of employment for those
employees transferring in order for receivers to identify any proposed measures
(changes).
• Sender organisations request proposed measures from receiver organisations –
to be returned no later than 06/02/13.
• Letters will be sent to Full Time Trade Union Officers and the Chair of the
NHSGM Staff Side formally notifying them of the commencement of
consultation on transfer along with a list of all employees proposed for transfer.
Consultation on measures will commence no later than 07/02/13 and end by
28/02/13.
Process
• Sender and receiver organisations will inform and consult with
appropriate representatives of employees who might be affected by the
proposed transfer on any proposed measures. This will include those
employees with a right to transfer but with no role identified in a receiver
organisation to transfer to.
• Claims for failure to consult may be lodged with an Employment Tribunal
and if upheld would lead to the relevant employer being liable for up to 13
weeks pay for each employee affected.
• Sender organisations provide due diligence data (e.g. name and home
address of employees) and employee personal files to receiving
organisations two weeks prior to transfer. For this purpose, employee
records have been subject to data cleanse and audit and all records have
been accounted for.
Process
• Sender organisations provide each employee who is in scope to transfer
with a letter of final confirmation of the transfer setting out the detailed
terms of the transfer, the support package that is available and the
objection / appeal process. This letter will also include details relevant to
the personal position of an employee, e.g. if they work part time, details
of any relocation, pay protection.
• Receiver organisations will send a welcome letter to transferring
employees confirming the outcome of consultation and agreed measures.
This letter may also request sensitive personal data from employees (e.g.
bank details) to enable the receiver organisation to set up employees on
the payroll.
Proposed Measures…..
• Pay date – proposed to be 27th day of each month or Friday before
if 27th day falls at a weekend
• Location – St James’s House in Salford; hot desk mobile working
for some employees, CCG locations across Greater Manchester
• Job titles and reporting arrangements of employees transferring
into the CSU will change on transfer as already identified and
notified through the Greater Manchester/national pooling,
matching and recruitment process
Proposed Measures
• Structures to be reviewed for Functions Lifting and Flipping or
Lifting and Shifting post April 2013
• If you do have a right to transfer under TUPE but have not yet
secured a role within GMCSU– you will be invited to a 1 to 1
meeting to explore and explain what this means for you
Proposed Measures
• Whilst employees will transfer across with current contractual
terms & conditions (other than those mentioned previously) a
review post 1st April 2013 will take place on salary sacrifice
schemes starting with lease cars, childcare vouchers, cycle
schemes, and ‘health time’
• Other areas-as these are identified they will be communicated
via Staff Partnership forums
……..and Finally
• We are in the process of setting up formal staff partnership
arrangements
• You can get involved in shaping your organisation via Jigsaw
• If you are not starting in your role until the 1st April make sure
you read CSU matters to keep you ‘up to date’ and informed
• And remember we have the communications mailbox for any of
your questions [email protected]